April 3, 2012

There is nothing novel about the law taking into account a criminal’s state of mind; one of the prerequisites for a conviction under common law is “mens rea” — a guilty mind, malice aforethought, criminal intent. The law also recognizes gradations of guilty purpose. A premeditated killing is more punishable than one committed in the heat of the moment, which is worse than a killing that results from negligence. New York law compounds the punishment if you kill someone to prevent him from being a witness.

The distinction [law-and-philosophy prof Heidi M.] Hurd makes — convincingly, I think — is that when you penalize intent you are punishing matters of choice. One can choose not to pull the trigger, not to throw the rock, not to steal the purse.
“You can’t choose not to be prejudiced or biased — at least not willy-nilly, on the spot,” she told me, when I called her the other day at the University of Illinois. “We pass moral judgments all the time against bigots and chauvinists and homophobes and so forth. But this is a question not of what we should morally blame people for, but of what we should deprive them of liberty for.”...

In most cases, hate crime laws take offenses that would carry more modest sentences — assault, vandalism — and ratchet up the penalty two or three times because we know, or think we know, what evil disposition lurked in the offender’s mind. Then we pat ourselves on the back. As if none of us, pure and righteous citizens, ever entertained a racist thought or laughed at a homophobic slur.

When you draw a swastika on a synagogue, you are manifestly engaging in a hate crime. When you punch out Bernie Madoff, the evidence is not so self evident. Lots of people want to harm Bernie Madoff, and, I presume, some of them might want to do so for anti-Semitic reasons. When a line is this blurry, it's not really a line......Trayvon and Zimmerman were both youngbloods marking their territory. Why is there such an assumption that racial prejudice was the dominant motive of the confrontation? Perhaps it played a part. Maybe Zimmerman followed Trayvon because he was black, or, for that matter, maybe Trayvon resented being challenged by a Hispanic. Or maybe suppositions such as the above are also forms of prejudice. I'd say leave it go and just pass judgement on proven factual events.

I've long deplored "hate crimes" laws. I agree that harassing or terrorizing or assaulting (or certainly killing) people because they belong to a particular hated group--gays, ethnic minorities, women, etc.--is a terrible thing...but there are laws against terrorizing and harrassing and assault and murder on the books! To add extra punishment merely because the motive may have been hate or bigotry rather than larceny or personal animus is nothing more or less than punishing one for one's thoughts.

Hate crime laws were brought forward by the Left for pure political advantage, not because there was a real need for the laws.

Lefties knew that Repubs would voice ojection to these laws, mostly on the grounds that the underlying behaviors were already actionable under exisiting criminal laws as well as other logical arguments against the laws. The Lefties then used the Repub oppostion to hate crime legislation in order to label them as racist, sexist, etc. In short, it was a play for minority votes.

Hate crime laws are just one more example of Lefty moral preening in politics. Of course, just about all politics today is moral preening, which has got us so screwed up.

Remember children, on the Left, policy is deemed good if it helps elect Democrats or hurts Repubs. So even though the problems surrounding hate crime laws have existed since first proposed and enacted, it didn't matter to the Left because it was politically useful at the time against Repubs.

I think the 'basic notion' or real reason behind hate crime legislation is the effect on the class of persons impacted by the hate.

I can burn a cross on your porch, and I'm not "just" committing vandalism, trespass, and arson (say). I'm sending a threatening message to a class of persons. It makes the family down the block that shares the class more fearful than the family that doesn't

What is protected by hate crime legislation is the class of persons. Its saying "we as a society reject your attempt to attack this class, and you will be punished extra".

because apparently, the message if you don't is "who care about you, special class of folks, and your sense of being intimidated as a class: we have a majority culture here and you will fit into it and get no special consideration"

No doubt, every side wants to win and beat the other side. But I think the Left has tried to poison the well on race and gender issues for political gain for several decades now. Their support hate crime laws was and is one of those ways. It's really quite unforgiveable.

Keller convinced me to change my view. In the majority of cases it is an issue of justice and the sentence fitting the crime committed not thought. I suspect in the majority of murder cases, and assault with intent to harm, this is exactly what happens.

If we all agree (I think?) that a judge can consider aggravating circumstances when he or she hands down a sentence, why shouldn't we codify the penalties when it comes to aggravating factors like racial animus or religious bias?

If three juveniles tear up a house in one case because they just wanted to tear up a house but in another case they did so because the owners were black, shouldn't the judge give an extra penalty in the latter case? The motivations - or mens reas - behind the two crimes were different. One was juveniles acting like assholes but the other was juveniles acting in a more pernicious way.

Without codifying the penalties, we allow judges to arbitrarily give an extra penalty in this case while not in another.

I'm not sure where I stand but I'm not so dismissive of this as others.

"If three juveniles tear up a house in one case because they just wanted to tear up a house but in another case they did so because the owners were black, shouldn't the judge give an extra penalty in the latter case?"

Why? If the actions and results are the same, why should the differing motives produce different punishments?

I don't mean to minimize the reality or seriousness of crimes against persons or property that are driven by bias and hatred, but shouldn't the extant laws against vandalism or assault or murder offer sufficent promise of punishment, assuming conviction?

Why? If the actions and results are the same, why should the differing motives produce different punishments?

I'll answer (or try to) with a question: Do you think that the motive behind an act shouldn't be considered when we judge that act?

Extreme examples: If I knock you down as you're walking across the street because I think a bus is going to hit you versus knocking you down because I dislike you, shouldn't my motive be considered and taken into account?

In both cases, I knocked you down. But my motive or thinking behind the act fundamentally changes the act of knocking you down.

The motive or thought or purpose behind an act surely must be considered when we judge an act.

Using my above example of the juveniles wrecking a homse, if you were a judge handing down a sentence would you give the same penalties out?

Zachary Paul Sire; I like the part in the linked article where the writer asserts that Martin was shot because he was walking while black. You might not be interested in reading what rich white people say but you should try to keep up a bit better. You are several laps behind if you believe this nonsense.

Then we pat ourselves on the back. As if none of us, pure and righteous citizens, ever entertained a racist thought or laughed at a homophobic slur.

Why should it matter whether most, some, or very few people occasionally have such thoughts?

What's wrong with hate crimes is that they are criminalizing certain thoughts, certain opinions. It is pure Orwell.

It is frightening in the way the recent movement on the part of some liberal intellectuals to try to categorize conservative opinions as a sign of mental illness or mental deficiency is frightening. These liberals don't want a free exchange of ideas. They want to declare the holding of opinions they disagree with as a criminal or pschotic act.

Which of course is what the Soviet Union and other left-wing governments do.

What is it about left-wing ideas that makes their holders so totalitarian? You'd like to think that the Soviet Union's imprisonment of dissidents was an anomoly, but here we are in the supposed cradle of liberty and we have the American left wing trying to criminalize anti-left thought the same way the Soviets did. It has to be something inherent in left-wing ideology.

The only time I got robbed during the five years I paid school tuition driving night shift taxi, I took the guy to court. He copped a plea for third degree theft on a charge of armed robbery after I disclosed to the prosecutor that I had once smoked a joint that I suspected could have been laced with heroin. Duck Soup was certainly a funny movie, but not as hysterically funny as it had seemed on that occasion. The defendant's story was that I was on the city's worst street corner late at night waiting for him to return from the bar he had entered with the thirty five dollars I had given him to buy drugs. My story was that the hooker I had driven to that corner from downtown only paid me three dollars on a $3.60 fare and I was waiting for her to obtain the outstanding balance on my bill. My description in court of the knife her "boyfriend" had used to settle the account matched the weapon the narcotics officers in the bar found on the defendant when they apprehended him. Hate crimes weren't in vogue then.

I think the 'basic notion' or real reason behind hate crime legislation is the effect on the class of persons impacted by the hate.

What if someone throws a firebomb at a known Nazi skinhead hangout?

Such an act is clearly motivated by "hate" and is designed to intimidate the class of persons who hold Nazi beliefs.

Yet as far as I know there is no "hate crime" legislation protecting those with Nazi beliefs like there is protecting, say, those with muslim beliefs. (Which is ironic considering how very similar Naziism and Islam are - both advocate conquering the world by force, enslaving the infident/inferior races, and advocate extermination of the Jews.)

So "hate crime" legislation is not about outlawing hate-motivated actions. It's about the Left punishing beliefs they don't like. It's thoughtcrime.

"Do you think that the motive behind an act shouldn't be considered when we judge that act?"

Mmmmm...hard call, but, in most cases, probably not.

"Extreme examples: If I knock you down as you're walking across the street because I think a bus is going to hit you versus knocking you down because I dislike you, shouldn't my motive be considered and taken into account?

"In both cases, I knocked you down. But my motive or thinking behind the act fundamentally changes the act of knocking you down.

"The motive or thought or purpose behind an act surely must be considered when we judge an act."

Again...in most cases, I think not, though I allow that there are cases where motive might be considered in order to mitigate punishment, rather than to enhance it. In other words, we should assume that if a person is being charged with harrassment or assault or even murder that the punishment, on conviction, will either be the maximum permitted permitted by law or some lesser punishment, according to the court's sense of mercy and freedom of prerogative. I don't think we should look at motive in order to find reason to add more punishment than the basic charge could bring on its own terms. (In the same way that a judge can set aside a verdict of guilty if he considers the jury's verdict to be a travesty of justice, but the judge cannot impose a guilty verdict on a defendant who is acquitted, even if the judge sees the verdict as obviously incorrect.)

"Using my above example of the juveniles wrecking a homse, if you were a judge handing down a sentence would you give the same penalties out?"

I don't see any mitigating circumstances for juveniles wrecking a home just because they're "being juvenile assholes," and I don't think that juveniles who wreck a home because they're biased against the home's residents should receive a greater punishment than what would be normally handed down for vandalism committed for no particular reason.

These may seem fine distinctions, but we should look to our system of justice to protect the defendant against abuse of power by the state. I think motive may be considerd to lessen punishment, but not to increase it.

"Do you think that the motive behind an act shouldn't be considered when we judge that act?"

"Mmmmm...hard call, but, in most cases, probably not."

Food for thought: motive need not be proven in criminal cases (except in ones like we're talking about). However, it is permissible, and usually desirable, for the prosecution to prove motive because it goes to intent--the criminal or "bad" state of mind. Criminal intent is an element of crimes and must be proven for a conviction.

So, oddly enough, it is fundamentally accepted that a "bad" state of mind must be proven for a criminal conviction--why can't we do the same for hate crimes?

The problem with "hate crimes" is that they denigrate individual dignity. They prescribe a criminal offense is considered differently for one individual than another based on purely subjective reasons. They also provide a premise to describe intent without a crime every being committed or even attempted. While there may exist a correlation between motive and prejudice, it is difficult, and often impossible, to determine if the feature is principal or incidental, and therefore can neither be considered to establish a pattern nor infer a predisposition to commission of a crime.

Something else to consider is the origin and perpetuation of prejudice. We are incapable of distinguishing between them. Since we cannot identify and prevent the former, it is then incumbent on society to control the latter. To this end, we must end the establishment and proliferation of protected classes, any other method by which we manufacture artificial divisions, and perpetuate the development of prejudices, established through fear, envy, and distrust.

The original prejudice can be understood as stemming from material and loyalty differences between various populations. With our effort to compensate for past transgressions, real and perceived, we are, in fact, perpetuating those prejudices through an active effort to sustain the causes.

Anyway, the current standard of proof is insufficient to overcome reasonable doubt and therefore sabotages the basic principle of presumed innocence.

pduggie: You raise the only conceivable rationale for hate crimes to be on the books. It is certainly worth considering. The possible counter argument is that hate crimes are used to foment discontent and anger among the aggrieved group when isolated incidents are used to create or bolster the belief that the aggrieved group is a targeted and victimized class and that the isolated incident is commonplace. It is this latter point that is unsettling at the current moment and which argues against hate as a magnifier of crime.

My believe is that this is inevitable when you conflate guilt or innocence with punishment. In my ideal system, the trial is to determine whether the person did the act. In the punishment phase, aggravating and mitigating factors are used to determine punishment.

People, and especially prosecutors, don't like this. They want predictability. Hence, the massive increased volume of specific crime law and mandatory sentencing. The punishment phase is then rolled into trial where prosecutors have the most control. Moreover, by allowing prejudicial material to be introduced early and to make it appear to the jury that they have to convict the defendant of the crime for which he was accused or acquit.

Hate crime legislation simply takes this to the next logical step, but at a heavy price of freedom. The next step really is thought control and censorship. You see this in Canada and Europe and are beginning to see this in the US, where you already hear people saying that there is no difference between speaking an idea and carrying through with that idea.

Mr Cook is, IMO, a valuable contributor to Althouse. I dont agree with his politics, but he always been a commenter who is consistent in applying his philosophy to his comments. Well done, Mr Cook. You are a principled man.

"Food for thought: motive need not be proven in criminal cases (except in ones like we're talking about). However, it is permissible, and usually desirable, for the prosecution to prove motive because it goes to intent--the criminal or 'bad' state of mind. Criminal intent is an element of crimes and must be proven for a conviction.

"So, oddly enough, it is fundamentally accepted that a 'bad' state of mind must be proven for a criminal conviction--why can't we do the same for hate crimes?"

I'm not a lawyer so I can't say what the law says, but it seems to me that "intent" and "motive" are distinct from one another. One might have the "intent" to harm a particular person, but one's "motive" may be one of many: one may have a personal grudge against the person one intends to harm; one may wish to rob the person one will harm; one may hate the race, creed, gender or sexual orientation of the intended victim; one may have been hired to inflict harm; and so on.

I think the motive is less material than is the intent to harm.

The prosecution may be able to prove the defendant had the intent to do harm, but can they prove the motive? And if the intent was to cause harm, does the motive matter, (except, perhaps, to mitigate punishment)? Isn't intent to cause harm enough to prove a "bad" state of mind sufficent to convict, (assuming it has been proved the defendant committed the physical offense)?

Moreover, the danger of "hate crimes" and the rationale behind them is that by providing enhanced punishments for one's presumed "thoughts" as one commits a crime, how much closer are we to trying people in court for merely have the "thoughts," without having to commit the crimes? How difficult is it for the authorities to create a class of "thought crimes," the entire purpose of which is to restrict acceptable thought and behavior? (For example, in Germany and some other European countries one can be criminally prosecuted for denying the fact of the Holocaust. Do we want to find ourselves in America at a point where we can be arrested and tried criminally for, say, defending the Confederacy, or for uttering criticisms of the authorities? This is where "hate crimes" laws--the thinking behind them--can lead.

I think the totalitarian impulse comes from the conviction that there are behaviors which are positively good and should be required of everyone and that those who fail to do these things should be compelled to do so for their own good and for the good of society. This is an attitude which can start with religious or secular ideology.

The contrary view is that some behaviors are harmful and people should be prohibited or at least discouraged from them.

Both involve the use of force to modify behavior. The former tends toward totalitarianism.

these people aren't liberals, which implies that they support liberty. They don't. they abhor liberty. they are self-styled "progressives" though the only progress they seem to support is the progress made by the state in acquiring and abusing as much power as possible at the expense of individual liberty (assured, as they are, that they'll be the ones using that power.)

What world do you live in that imagines white kids going into black neighborhoods to mess up their houses? I have never known or heard of this happening. White kids are afraid of black neighborhoods, with good reason. White kids have been killed for being white in black neighborhoods. I used to teach alternative school. Even hoodlems know where it is safe to go an where it is not.

Extreme examples: If I knock you down as you're walking across the street because I think a bus is going to hit you versus knocking you down because I dislike you, shouldn't my motive be considered and taken into account?In the first case there is legitimate defense of a third person.The is a justification cause it is not about motives or guiltif a knock you out of a boat with room for one in the middle of the sea to save my life while you are innocent. What the germans call unon exigibility of another behavoiur or the romans, state of neccesity.Justification cause again. Nothing about guilt( ther eis guilt) and no penalty. It is the reason why abortion to save the mother´s life is no punishable even if you think life begins with conception.In those case there is no discussion of means rea

A man see a beautiful girl in the street , he thinks she is homeless will became a prostitue. He kills her. He did for a good motive and of course he will be punished.

In civil law countries there is an agravating circunstance. Futile or ignoble motives to kill.the penalty is harsher because of the motives like when you kill for a bounty or for fun or because you hate black,asian,white, native people. Though police? yes. The option ? In roman law,responasability was objective . You kill , you are punished. The canonical law and too some extent mosaic law introduced what you call mansalughter or killing for negligence , lack of prudence o lack or expertise or for breaking technical procedures. In those cases you did not wanted to kill but engaged in a reckless behaviour that caused death.

but can they prove the motive? yes i can prove you were paid to kill.i can prove you killed to inherit your rich relative. i can prove that you only wanted fun.Snd yes i can prove you killed someone for being gay, black etc.

Wrong.it is otherway right. SupraIf you are lawyers i recommend you the books by Beling, Mezger and Jimenez de Asua and . Two germans and a spaniard jurist( he was the president of the Republican Congress prior to the coup that began the Civil War) that are the greatest criminal lawyers of the history. They presented soultions to all those problems you faced here

They prescribe a criminal offense is considered differently for one individual than another based on purely subjective reasons. Do you really think that the jury system is oblective. Like Ice t said of democracy quoted by the author of Anatomy of Disgust. Do you see thatold lady watching wrestling.. they are the jury members

In a "hate crime" the criminal motive is wanting to hurt a person - not wanting to hurt their skin color. Therefore the race should not matter. Otherwise you are led to regarding that the seriousness of a crime and the harm to the victim depends on skin color. Unless you want to accept counting people for less or more by their skin, this needs to be abandoned.

The way to get past racism is to get past race. Anything less is hanging on to the old prejudice and just switching hands when it gets heavy.

Isn't it odd the same people saying we need rehabilitation are all in favor of using the penal system to achieve their goals? It's one of the many contradictions in liberal thought.

Just because I'm tired of the constant BS attacks, like hate crimes, I would be all in favor of a law that said crimes committed against a suspect class, regardless of the perp, are subject to a triple penalty. And further, for homicides special circumstances are automatically added, and the way to the death chamber becomes very short, limiting appeals to one, to be resolved within a year, and carrying out the execution within 60 days.